In his blog on Thursday, Google senior copyright counsel William Patry wrote, "Today, district judge Michael Davis issued an order indicating he may order a new trial based on an entirely different ground: concern that Jury Instruction N. 15, which permitted the jury to find infringement based on the RIAA's making available theory, may be contrary to the Eighth Circuit's binding precedent in National Car Rental System, Inc. v. Computer Associates, Inc., requiring the distribution of actual copies."
At the conclusion of Thomas' trial, jurors were presented with, among others, Instruction N. 15: "The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown."
According to a Star Tribune report, the judge's order said that "he may have made a 'manifest error of law' last October when he instructed a Duluth jury that simply uploading songs to a music file-sharing network could be considered illegal distribution, even in the absence of proof that anyone received them."
Patry, a respected copyright expert, said he believes the making available theory is inconsistent with the ruling in the National Car Rental case and observed that the judge had taken note of the decision in Atlantic v. Howell, in which a decision that had initially equated making a file available with file distribution was reversed.
If the judge does decide to order a retrial, a higher burden of proof in future lawsuits may be necessary to establish a violation of copyright law by users of peer-to-peer file-sharing services.
According to Patry, the judge has scheduled a briefing on the issue for May 29 at noon, with reply briefs due at noon on June 5, and oral argument on July 1.
Said Patry, "This is a big deal."